HARIHAR SUGHAND P LTD Vs. ADDL CIVIL JUDGE

JUDGEMENT

(1.) These two petitions bear close resemblance to each other by reason of similar nature of controversy and also by reason of the fact that plaintiff in both the suits is one and the same and plaintiff brought action in both the suits on the ground that goods supplied by the defendant were sub-standard. It would therefore be appropriate that both the petitions should be disposed of by one composite order.

(2.) To avoid adding bulk to the composite order which this Court proposes to pass on the points involving merit, it would suffice to recapitulate facts as embodied in Writ Petition No. 3883 of 2004 filed by M/s. Harihar Sughand (P.) Ltd. for clinching the issue. It would appear that the petitioner has rushed to this Court assailing the order dated 5.1.2004 passed by Addl. Civil Judge (Senior Division). Kanpur Nagar by which the court below allowed Application No. 39/C2 and appointed Advocate Commissioner.

(3.) Plaintiff who is arrayed as respondent No. 2 in the instant petition, a company engaged in manufacturing 'Pan Masala' instituted Suit No. 1082 of 2000. It would appear from the record that in processing its product, i.e., Pan Masala the respondent No. 2 had purchased 10 kg. of Atar Motia-50 from the petitioner defendant which was found to be sub-standard, i.e., detracting from standard and it was set apart as unfit for being used in processing goods which is meant for human consumption. Thereafter, dispute erupted leading to the institution of the suit. It would appear from the record that initially, plaintiff made an application to the court below for appointment of an Advocate Commissioner with the direction "to go at plaintiff's factory premises and to prepare the inventory of goods as specified by the plaintiff in the referred and relevant paragraphs of the plaint with requisite details and to get them packed and sealed adequately and properly so that they may be fully and properly secured. The learned Commissioner be also directed to affix seal and signature after securing them properly in the container." The aforesaid application came to be rejected by means of order of the court below dated 3.2.2003 and it was reasoned by the court below that "whether plaintiff had consumed the goods supplied by defendant is a matter of evidence and in case, subsequently, it is found necessary to collect evidence by commission, it may be issued. Subsequently, an application was made for framing of an issue on the question pursuant to which the court below framed an issue on the aspect whether the materials supplied by the defendant had been consumed by the plaintiff and if yes its effect ? Thereafter, followed another application by which the plaintiff respondent No. 2 sought issue of commission in relation to the goods which were stored and lying unused at the factory of the plaintiff. It would appear that the court below framed the issue and while dwelling upon the issue on the aspect framed by it, it converged to the conclusion that it would be proper to issue commission for collecting evidence and for effective adjudication of the issue framed and consequently, it appointed Advocate Commissioner with the direction to submit its report by 9.2.2004. It would appear that in the meantime, the petition was preferred in this Court and the Court was pleased to pass interim order dated 3.2.2004 thereby staying operation of the impugned order passed by the court below.